Belinda Smyth

Disqualified driving is an extremely serious traffic charge in Queensland. The Courts are particularly hard on these types of offences as to be charged with disqualified driving you must have already been disqualified by a court. Disqualified driving is the most common traffic offence that causes people to be sentenced to jail.

The charge is different to a simple unlicensed driving charge as there must be a previous disqualification by the courts still in place at the time the offence was committed.

The court will impose a further minimum disqualification of 2 years however there may be circumstances where there is a defence to a disqualified driving charge.

The vehicle was not driven on a road

The law requires that to be guilty of disqualified driving the person must be driving a vehicle on a road. If the vehicle is being driven on private property this may be a full defence to the charge.

You weren’t driving the vehicle

There are often occasions were someone has taken or borrowed your vehicle and either triggered a speed camera or more seriously has evaded the police. In those circumstances it is critical to get immediate legal advice as very short and strict time limits may apply to being able to nominate another person as the driver. If you fail to nominate the other driver within the time limits then you can be legally declared the driver, also if you pay a speeding ticket or infringement notice may deemed to be the driver.

You were driving for an emergency

The law allows an exception for driving in an emergency. This in the past only extended to driving emergency situations such a person to hospital where no other transport was available. The courts have recently however begun to accept that not all situations require a dire emergency. For example we were successful in having a disqualified driving charge withdrawn against our client in the circumstances where our client drove to a chemist to get Panadol because everyone in the house was sick and he was the only person who could drive.

The key question is not what a reasonable person would have done but what an ordinary person in the shoes of the accused could have done. Once the defence is raised the onus fall on the prosecution to prove an ordinary person would not have acted in the same way as the accused.

There are also other defences such as mental capacity which are not covered in this article.

If you have a defence then in most cases you will need to take the disqualified driving charge to trial to be found not guilty. There are however often occasions where it is possible to make submission to the Prosecution Service to drop the charge before it goes to trial. This is a very involved process and should never be undertaken without a lawyer.

If the matter goes to trial then the charge would be held before a Magistrate but not a jury. If the court finds a person not guilty then that is the end of the matter. If however after trial a person is found guilty then it is important to note the further disqualification period only starts from when the Magistrate makes his or her decision. The Magistrate will also impose a fine and depending on a number of factors including traffic history might impose a term of imprisonment which may or may not be partly or wholly suspended.

If you think you have a defence, want to engage us or just need further information then you can either;

The legislation provides that where a person has two high range drink driving charges (a high range being above .15) and a person is again charged with another high range drink driving charge then the court must impose a sentence of imprisonment (all offences must occur within 5 years). In those circumstances the question becomes whether the person will actually spend time in jail. Whilst the legislation says a term of imprisonment must be imposed, there are options other than a person spending time in jail. Those options are either a wholly suspended sentence or an immediate parole release date.

A wholly suspended sentence involves a person being sentenced to a term of imprisonment but not being required to serve that imprisonment if they keep out of trouble for a length of time, usually 12-18 months. This way a person can remain in the community with the prison sentence hanging over them for a period of time, if they behave no further action is taken, if they commit an offence that carries a jail sentence then they will be bought before the court to serve the original suspended sentence.

An immediate parole release date is where a person is sentenced to imprisonment but is released from court into the supervision of a parole officer. They will be required to undertake courses and other programs but if they remain trouble free they will not have to serve the original sentence.

It is critical where a person is facing a high range drink driving charge for the third time that they get immediate legal advice.

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;

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Often people are completely overwhelmed by the thought of attending the Brisbane Magistrates Court for a drink driving or DUI charge. In Australia these types of matters are never televised and so people often have no idea what the process will be like or worse think it will be something like the American process they have seen on TV.

This article gives some idea what a typical Court appearance will be like for an unrepresented person in the Brisbane Magistrates Court. It is important however to note that in almost all cases having a Lawyer represent you will result in a shorter disqualification period, smaller fine and much less stress.

What will happen in Court?

Firstly you should arrive at least 25 minutes before your scheduled Court start time. In the Brisbane Magistrates Court all drink driving matters begin at 9am and are generally heard in court 33 on level 7.

The Brisbane Magistrates Court is located at 363 George Street. There is another Magistrate Court in Brisbane known, very confusingly, as the Brisbane Magistrates Court – Roma Street. It would be very unusual if your matter were to be held in the Roma Street Court as this is reserved for criminal matters.

When you enter the Brisbane Magistrate Court there is a security point which you must go through. Once you have been through this on your right hand side is a number of electronic noticeboards which will list the Court number your matter will be heard in. You should then take the elevator to the floor where the Court is.

Eventually a Police Prosecutor will arrive you should then go and speak to them in the Court room. The Prosecutor will provide you the outline of the case against you, breath analyst certificate and your traffic history. This document is generally known as the “QP9”. The Police Prosecutor will only want to know whether you are pleading guilty, not guilty or seeking an adjournment. Given the large amount of people waiting to see the Prosecutor they cannot and won’t be able to engage in any real discussion of your matter.

Check the QP9 while you wait for the Court to start to ensure it is correct. If it isn’t go and talk to the Police Prosecutor. If the details on the QP9 are wrong it might be appropriate to seek an adjournment.

The Court will start when the Magistrate enters, please stand whenever the depositions clerk (the Magistrates assistant) or Police Prosecutor calls ‘all rise’ and then wait for the Magistrate to sit down before sitting yourself.

Typically those with Lawyers will go first and then those people seeking an adjournment will go next and finally those people who are pleading guilty will go last. There may be 30-60 people on any given day in the Court so it is not unusual for a unrepresented person pleading guilty not to be heard until 11am or even later.

Wait for your matter to be called and then approach the table where the Police Prosecutor is. You will stand to the far left of the table. Remain standing while the Magistrate asks what you are doing. At this point you must tell the Magistrate what you want to do. Please ensure you address the Magistrate as “Your Honour”. If you are pleading guilty the Magistrate will ask you to confirm this and then the Magistrate will then ask you to sit.

The Police Prosecutor will read a brief statement of facts and give the Magistrate a copy of your traffic history and breath analyst certificate. All of these documents will be in the QP9 so you should have already seen them.

Once the Police Prosecutor finishes the Magistrate will read the traffic history and breath analyst certificate and if they have any queries they will ask you. If you have not already filed any character reference tell the Magistrate if you have some, the Police Prosecutor will take them from you and will give them to the Magistrate. You then have an opportunity to explain to the Magistrate what happened with your drink driving charge and anything else you wish to raise.

Once you have finished speaking and when the Magistrate has no further questions for you they will impose the sentence. Given that all drink driving charges in Queensland carry a mandatory period of disqualification then you will be required to surrender your licence to the Prosecutor. Once this is done you may leave the Court.

If you are eligible to apply for a work licence and are choosing to do so your matter will be adjourned to another day to hear that work licence application. You must apply for a work licence before the court imposes your sentence, you cannot apply afterwards. More details about work licences can be found here

While you are free to represent yourself in Court, engaging Clarity Law to act for you has a number of benefits including;

We know the judges and what they want to hear to give you the lowest penalty

We have good relationships with the Police prosecutors meaning we can often have them support the penalty we are asking the Court to impose or make changes to what they will tell the Court

We will be able to get a copy of your QP9 before the Court date

We are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in Court

Engaging us shows the Court you are taking your charges seriously

Your matter will be heard early, often first, you do not have to wait for 30-50 other matters to be heard before you

You will be fully informed of what is to happen in Court and what this means for you after Court

Unlike the police or the Judge, we are there to look after you, your privacy and your interests

We appear in Brisbane Magistrates Court several times for with people charged with drink driving, it is this experience that allows us to get the best result for clients. Other law firms simply don’t have the experience that we do and don’t know the judges like we do. We offer one of the most competitive prices for drink driving charges in Queensland click here to see what we will charge. If you want to engage us or just need further information or advice then you can either;

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. Its represents information about the law in Queensland and since publishing the law, the practice of the court or the interpretation of that law may have changed.

A QP9 (Queensland Police Form 9 or police court brief) is a document prepared by the Police Prosecutions unit when someone is charged with an offence. The QP9 lists the exact charge with a brief description of the facts which the Police are alleging against you as well as attaching any criminal or traffic history. Depending on what Court your matter is to be heard in, and how busy the Police are, the document will be provided prior to your Court date or at Court.

It is essential to carefully go over the QP9 prior to entering a plea before the Court, as you are not only pleading guilty to the charge but also to all the facts and circumstances surrounding the charge that the Police allege in the QP9, this may include the way you acted towards the Police, things that you said or admitted or information recorded by the Police that you may believe is incorrect or inaccurate. This should be remembered when being charged as harsher penalties or less leniency can apply if the document states that you were rude, unruly, unhelpful etc. Also being aggressive when being charged can easily result in a further charge of resisting arrest or obstructing or assaulting police.

Obtaining the QP9 or having a Lawyer obtain the document for you and having a thorough look over the QP9 before you enter your plea is essential so that if there is any discrepancies they are looked into.

In Court the Police will read out the charge and a brief rundown of their version of events from the QP9. It is then that your Lawyer, or yourself if you are self-represented, can have your say to the Magistrate. If there are significant factors from the QP9 in which you disagree with it may be possible to draft submissions and put them forward to the Police Prosecutions asking them to reconsider the charge or amend what is written in the QP9. A Lawyer can advise you as to the possibility of making submissions and if what the likely chances of the Prosecutor accepting them would be.

Some examples of our success in getting the Police Prosecutions to lower or dismiss charges are:

1.Our client was charged with dangerous driving whist effected by alcohol and drink driving. A person cannot be charged with both offences, only one or the other. We addressed this with the Police Prosecutions and the result was the charge of drink driving was withdrawn.

2.Our client was charged with unlicenced driving. At the time that the letter had come from Queensland Transport telling our client his licence was suspended our client had been suffering an extremely traumatic string of events. On these grounds we were able to convince the Police to withdraw the unlicenced driving charge.

3.Our client was charged with driving under the influence of drugs, being the higher of the two drug driving charges. Upon receiving the drug analysis certificate and after going over the QP9 document we were able to have the Police agree to downgrade the charge to driving with a relevant drug in the client’s system.

In more serious matters it is possible to request a full brief of evidence. This document is like a QP9 but much more detailed and will include any witness statements, CCTV or audio footage. Where applicable it is also possible to request any Police body camera or police vehicle camera footage that may be available.

Needless to say engaging a Lawyer to represent you ensures that all avenues are explored to ensure all aspects are covered and you ultimately receive the absolute best outcome possible.

Here at Clarity Law we appear in the Courts with clients all over South East Queensland. It is this experience that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the Magistrates like we do. We also offer the most competitive prices for representation in Queensland click here to see what we will charge. If you want to engage us or just need further information or advice then Call us on 1300 952 255 seven days a week, 7am to 7pm.

Disclaimer:

The information provided is for informational use only, and are in no way intended to constitute legal advice or to create a lawyer-client relationship, and you should not act or rely upon any information appearing in this article without seeking the advice of a lawyer. Moreover, because the law is constantly changing, the information appearing in this article are not guaranteed to be correct, complete, or up-to-date. Steven and Clarity law only undertake matters in Queensland.

Clarity Law's liability limited by a scheme approved under professional standards legislation.

The penalties handed down for unlicenced driving charges can vary greatly depending on the circumstances on how you came to be unlicenced in the first place.

If you forgot to renew your licence or you have never held a licence

The penalty for this type of unlicenced driving charge is at the Magistrates discretion and in most circumstances, depending how long your licence had been expired or your traffic history, can result in no suspension being put on your licence and you just receiving a small fine. There are however circumstances where if you were never licenced that the court will impose a 3 month disqualification.

However, if you have received an unlicenced driving charge in the past 5 years and are caught again then there is a penalty of between 1 to 6 months.

If you had a SPER debt and failed to pay it

Often people refer their fines to SPER to pay off. When SPER received the debt a payment agreement is made between SPER and yourself. Should you fail to honour the agreement and make the agreed payments your licence will be suspended for anywhere between 1 to 6 months. The mandatory minimum suspension time is the 1 month if you were caught driving on a SPER suspended licence and the Magistrate has no choice but to suspend your licence. In these types of unlicenced driving charges the fact that you did not receive the letter from SPER advising that your licence was going to be suspended on a certain date is not an acceptable defence. The Legislation states that Queensland Transport only need to show they sent the letter to you, not that you received it.

If you are demerit point suspended

If you exceed your demerit point limit (12 points in 3 years) you will be sent a letter from Queensland Transport. This letter will give you the option to have your licence suspended for a 3 month period or to go on a good driving behaviour period. If you do not reply and advise them which option you would like to select by the nominated date you will automatically be given the 3 month suspension. If you are caught driving during the 3 month period the penalty is a mandatory 6 month licence suspension. With this one particular charge, unfortunately engaging a Lawyer cannot achieve a lesser disqualification period.

Failing to have your licence re-issued by QLD Transport after serving a suspension period

If your licence is suspended by the Court you should have handed your licence in when the penalty was handed down in Court. Upon completion of the suspension period you must attend Queensland Transport and have your licence issued again. Until you do this you are deemed suspended still and if you are caught driving the penalty can be between 1 to 6 months.

Driving during your Court or Police ordered licence disqualification period

If you are disqualified from driving in a Court or are on a licence suspension period by the Police and are caught driving within the time you were ordered not to, it is classed as disqualified driving which holds a licence disqualification anywhere from 2 to 5 years. For more information on disqualified driving charges see - http://drivinglaw.com.au/services/disqualified-driving.html

Many people are unaware that they are unlicenced when they are charged with the offence. This can be due to multiple reasons. Some ways to avoid being expectantly charged with unlicensed driving are:

Always ensure that your current residential address is known to Queensland Transport Department and SPER, if you have a debt with them.

If you work away from home you should have someone monitor your mail in case any correspondence comes to you advising you have an overdue SPER debt, you have exceeded your demerit point limit or you receive a fine.

If you have a SPER debt that is direct debited from a bank account always ensure there are funds available for the payments to come out from. Also, if you change banks or close a bank account ensure the SPER payments were not connected to that account. If so you need to advise SPER of the bank account detail change immediately.

Here at Clarity Law we represent unlicenced drivers in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

When most people hear DUI they usually associate it with a drink driving charge. Whilst this is correct, as DUI stands for ‘driving under the influence’ it can in fact relate to either a drink or drug driving offence.

There are three levels of drink driving charges, being

Driving with a low BAC (blood alcohol concentrate) reading of between .05 and .099. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

Driving with a mid BAC (blood alcohol concentrate) reading of between .1 and .149. This charge carries a mandatory minimum of a 3 month suspension of your licence.

Driving under the influence(“DUI”) of alcohol charge is a result of a reading of .15 or above. This charge carries a mandatory minimum of a 6 month suspension of your licence.

A DUI drug charge means that you were charged with ‘driving under the influence of drugs’. Drug tests search for traces of THC (active ingredient in marijuana), MDMA (speed or ecstasy) and methamphetamine.

There are two levels of drug driving charges, being

Driving with a relevant drug present in your system

This charge is issued when a drug test indicates there is drugs present in the driver’s system but they appear to be unaffected by the drugs or substance. If you are charged with this your driver’s licence will be suspended for a period of 24 hours. This charge carries a mandatory minimum of a 1 month suspension of your licence (for an open licence holder).

Driving under the influence of drugs (“DUI”)

This charge is issued when a drug test indicates there is drugs present in the driver’s system and/or the driver appears to be affected and impaired by drugs. This will be ascertained by the driver’s appearance (eyes, facials expressions etc), behaviour and mannerisms. If you are charged with this your driver’s licence will be suspended immediately. This charge carries a mandatory minimum of a 6 month suspension of your licence. Whilst if you are sentenced to in excess of this period the Magistrate can take into consideration the length of time you have already had your licence suspended, if you receive the minimum of 6 months, this period will be served in full from your Court date.

Driving under the influence of drugs can be a result of illegal drugs, synthetic drugs (designed to mimic the effects of illegal drugs) prescription drugs (Xanax, Valium) and even some over the counter medical prescriptions. Anytime that you are effected by a substance which alters your abilities in any way you could be charged with driving under the influence of drugs.

A roadside drug test is simply an oral swab which is tested immediately and will indicate if there is traces of drugs in your system. If the test indicates the presence of drugs you will need to undergo another drug test which is sent to a Government laboratory for testing. You will receive a drug analysis certificate when it is available from laboratory testing. If your roadside drug test indicates no drugs in your system, the Police are still able to order you to undergo a blood test if they believe you are under the influence of a drug or substance.

We have been successful in the past in having some drug DUI charges downgraded to driving with a relevant drug in the drivers system by in putting forward to the Police Prosecutions submissions giving reasoning and information as to why the client should not have been charged with a drug DUI and have only received a driving with the relevant drug in their system charge.

Whilst with alcohol there are rough guidelines to how long the alcohol will take to be processed and out of your system there is no such recommendation for how long drugs may stay in a person’s system for. Many people find themselves being charged with driving with drugs in their system long after they have consumed or ingested drugs. Because each person responds to the consumption of drugs in a different manner based on their personal chemistry, past use, type of drug taken, amount of drug consumed, height, weight and other factors, unlike alcohol consumption there is no way in when to tell when the drugs have left your system.

It is important to note that you do not have to be driving your vehicle to be charged with a drink or drug driving offence, you could be charged if you are merely sitting in the driver’s seat.

Charges of low or mid BAC or a driving with a relevant drug in your system, depending on your circumstances and previous traffic history, can allow you to apply for a work licence to be issued to you for the duration of your suspension period. An alcohol or drug DUI charge however eliminates this option.

Here at Clarity Law we represent people charged with drink and drug driving offences in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. We are also not health professionals and our observations on drink driving and what effects a person’s BAC reading is based on our knowledge of representing thousands of drink driving client’s overs the past 15 years and not any specific medical training.

Here at Clarity Law we receive enquiries every day from people who have been charged with drink driving in Queensland even though they carefully monitored their alcohol consumption and the time in which did so. Your BAC (breath alcohol concentration) is the measurement of the amount of alcohol in your blood stream. The legal limit in Queensland, for an open licence driver, is 0.05. This means your body can contain 50 milligrams of alcohol per 100 millilitres of blood.

What your legal BAC is depends on the class of licence you have. Learners and probationary licence holders have a no alcohol limit which open C class drivers have to be 0.05 or under. For more information on this see – www.drivinglaw.com.au/services/drink-driving.html

Whilst it is commonly thought that the rule of thumb is two standard drinks in the first hour and then one every hour after that for men and one standard drink in the first hour and then one every hour after that for woman this is more often than not inaccurate. This is simply a guideline put out by the authorities and should by no means be relied upon and is not a defence in a Court. As soon as you start drinking your BAC goes up. It takes, on average, 30-60 minutes after you finish drinking for your BAC to reach its peak.

People also forget that there are other factors that might influence your BAC reading;

1.Is your drink actually a standard serve? Most pre-bottled beers and spirit cans, and wine glasses etc are more than 1 standard drink. In Australia a standard drink refers to 10 grams of alcohol (which is equivalent to 12.5milligrams of pure alcohol). Listed below is the guide to some popular drinks;

3.Have you consumed an adequate amount of food that day? This is a big one. The majority of our clients are surprised when they find their reading was over the legal limit and find it was more than likely caused by the lack of food they had consumed that day.

4.Your body size and how often you consume alcohol can also come into it effect.

5.Your health – are you healthy, do you have a liver condition, are you feeling sick or stressed?

6.Are you on medication that may increase the effects or the way that your body processes alcohol? Whilst this is not a defence in Court, as regardless of whether you knew the medication may affect your alcohol levels, the end conclusion is that you were driving with an alcohol level above the legal limit.

Many people think that consuming water, coffee, food etc after consuming alcohol will assist in bringing down their alcohol level. Unfortunately, the only thing that will bring your alcohol level down is time.

Queensland has some of the harshest penalties for drink drivers in both fines and suspension periods. It is critical to get good advice about the charge and whether you might be able to apply for a work licence. Information on applying for a work licence can be found on work licence page

Here at Clarity Law we represent drink driving charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. Other law firms simply don’t have the experience that we do and don’t know the process and the Magistrates like we do. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice. If you want to engage us or just need further information or advice then you can either;

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice. We are also not health professionals and our observations on drink driving and what effects a person’s BAC reading is based on our knowledge of representing thousands of drink driving client’s overs the past 15 years and not any specific medical training. Every state has different laws and information in this article refers to Queensland law only.